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Factoring is essentially a hybrid commercial operation that covers the elements of several legal mechanisms, the most common elements being borrowed from the debt assignment mechanism. However, the legislator did not consider it necessary to establish this legal operation in the contracts covered by the new Civil Code. Moreover, factoring does not currently benefit from any express regulation in Romanian law. Although, in the Romanian doctrine, we find references to a possible direct action of the factor against the assigned debtor, the situation of this action is uncertain. In this sense, we considered it opportune, but also necessary to formulate a brief analysis of what the factoring operation means in general, as well as to establish whether or not the factor’s action covers the elements of a direct action. In the Romanian doctrine and legislation we find only fragments of texts regarding the factoring operation, therefore, an exhaustive analysis regarding the application of factoring and even more so of the factor’s action cannot be performed. However, we hope that the brief explanations we will bring will lead to an outline, at least general, of the factor’s action against the assigned debtor. -
The present study illustrates a sensitive issue of the disciplinary procedure concerning civil servants, insufficiently debated in the speciality literature, namely the possibility of the titular of the disciplinary complaint to resort to the courts in order to refute the report by which the disciplinary investigation is finalized with a proposal to classify the complaint. The research is structured starting from the solution given to this issue by the courts themselves, in the few decisions that deal with the subject, a solution which the author attempts to combat in the light of the current legislation in force, insufficient in its turn, corroborated with the relevant approaches taken from the decisions of the Constitutional Court. Apart from the elements of novelty and originality of the analysis, it is distinguished by its applied character, knowing the ideas conveyed by the author being necessary not only for the civil servants involved in disciplinary conflicts – as defending parties or as members of the disciplinary commissions –, but also for the judges called upon to decide on the legality and grounds of the solutions for dismissal of the disciplinary complaints. The thesis of inadmissibility of the actions seeking the annulment of the dismissal solutions should be reconsidered, the author’s opinion being that the commissions’ reports can be included among the administrative acts (by express or tacit validation by the leader to whom they are presented) or in the refusal to perform an administrative operation, as a challengeable act under Article 8 (1) of the Law on administrative disputes No 554/2004. It is certain that concealing reports from the commission against any form of control is not only harmful (at least at moral level) to the titular of the complaint, but also abnormal, unjust and unlawful. -
Active procedural quality and interest are essential conditions for promoting any action in court. The verification of the two conditions must be carried out from the outset, firstly, by the person or persons initiating an action in court and, secondly, by the court which is invested with resolving the action. The lack of one of the two conditions paralyzes the resolution of the action on the merits and attracts the rejection of the action, either as being introduced by a person lacking procedural quality, or as being without interest. It is not often that in the defenses formulated by the defendant the exception of the lack of active procedural capacity and the exception of the lack of interest are invoked at the same time. Concomitant invocation is often natural, as procedural quality and interest are two elements which, although not confusing, often justify each other. However, I have encountered in practice multiple situations in which the active procedural capacity has been justified by the applicant’s/applicants’ interest in promoting the action. On the other hand, there may be situations, less common in practice, in which the interest is justified by the procedural quality. Here that the two basic elements of any action or lawsuit are often indissoluble, and their concomitant treatment appears natural. That is why I considered it opportune to carry out a brief study on how the interest justifies the active procedural quality, with references to certain solutions encountered in judicial practice or to solutions that had as inspiration the invocation of exceptions, thus trying to argue which, on the one hand, the two exceptions are invoked together, most of the time and, on the other hand, why, in a particular way, the interest justifies the procedural quality. At the same time, the study includes a comparison between the situations in which the interest is analyzed as an exception and the situations in which the interest must be analyzed on the merits. -
The preliminary chamber is a new, partly innovative institution for the national criminal proceedings. In fact, this is a qualitative transformation of the provisions of Article 300 of the Criminal Procedure Code of 1968. The preliminary chamber judge is vested with a control form with a specific object and the finality of this control consists in ordering the file for the trial stage on the merits. The jurisdictional control of the preliminary chamber falls within the scope of the entire criminal proceedings as a distinct stage, with its own individualized object. -
The objective of this short study is to answer a question: is there today a „contraventional law”, as a result of the fragmentation of the administrative law? Assuming the answer is affirmative, we must establish whether the contraventional law itself faces today a process of fragmentation, i.e. if we can talk, for example, about a road contraventional law, a contraventional law of competition, a fiscal contraventional law, etc. -
This study aims at performing a critical analysis of the Decision No 814/2015 of the Constitutional Court, by which the Court ascertained the unconstitutionality of Article 60 (1) g) of the Labour Code, which regulated the prohibition of dismissing trade union leaders, except in cases they committed serious or repeated misconducts. Also, the study puts forward a critical exam of the provisions regulating the prohibition of dismissing trade union leaders, emphasizing regulatory errors, by using historical arguments, and making consistent references to the relevant international and European legislation and case law.
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In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework. -
In this article, the author advocates the necessity to adopt a special law on the liability of magistrates for committing the judicial errors through bad faith or due to their own negligence. The beginning of reforming the political system set in motion in December 1989 has generated also the change of the judicial system as a whole and, at the same time with it, of the relations between the state and the citizen, according to the principles of the constitutional democracy. As the new government system places at its foundation the individual-citizen, it was natural for the state to assume a direct liability for the violation by its judicial agents of the legitimate rights and interests of the citizens. In this framework, it was built a system of corrections for judicial errors, extended to the effective legal liability of the judges and of the public prosecutors who, in bad faith or gross negligence, have violated the processual rights of the parties in the trial, have convicted them unjustly, or have subjected them without any grounds to some repressive procedures. This system of moral and material corrections does not work, the provisions in the matter, included in the processual legislation, are not sufficient for the citizen to gain full confidence in the act of justice. A special law is necessary not only to ensure the corrections of the judicial errors, but also to exemplarily sanction the guilty parties for violating the law. -
The present study starts from the question whether a reform of the judicial system is necessary in Romania, considering also the fact that the current regulation was adopted in 2004, a part of it having its source in the Law No 92/1992 for the judicial organization. The author considers that the change of the new procedural legislation has led to some normative inconsistencies and to an overcrowding of the courts, especially of the supreme court. The situation became critical and the supreme court was forced to promote an interpretation likely to abandon the original conception of the new Code, namely that according to which it is a common law court in matters of review. The Law No 310/2018 amending the Law No 134/2010 on the Civil Procedure Code, as well as for the amendment of other normative acts has enshrined this new approach of the supreme court, which provoked vehement criticism from some authors.
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In essence, the expropriation procedure goes through two stages, the administrative stage and the judicial stage, the common law in the matter being represented by the Law No 33/1994, as amended and supplemented. The litigation procedure is criticizable however, in many aspects, for the lack of transparency and of access to data, from the perspective of the holder of the restricted real right. Thus, although in the preamble of this normative act it is affirmed the necessity of equalizing the right of private ownership with the public interest, the latter has priority in many of the situations that have arisen in practice. -
The participation of a tenderer in insolvency in a procedure for the award of a public procurement contract is regulated, mainly, by the directives on public procurement and by the laws which transpose them in the Member States. Within the current generation of directives on public procurement, the exclusion of the tenderer in insolvency is still classified into the category of facultative reasons of exclusion. However, as an element of novelty, if a Member State of the European Union decides to turn this reason of exclusion from facultative into mandatory, the State has the right to regulate certain circumstances in which the contracting authorities are prohibited from excluding such tenderer from the procedure. Whenever such regulation is contained in the national acts of transposition of directives, the contracting authority becomes bound to establish whether the conditions that impose the maintenance of the tenderer the procedure are met. The Romanian legislator has chosen to regulate that the contracting authority can not exclude from the award procedure the tenderer that is in the phase of observation or reorganization, if certain conditions are met. Having in view this obligation to establish whether certain conditions are met in order to maintain the tenderer in the phase of observation or of reorganization, as well as the amendments brought by the new directives in the matter of exercise of the right of the contracting authority to request clarifications, it is important to determine the extent to which, under the influence of the new regulations, the assessment commission will have to take a proactive approach or not, in order to decide whether to exclude or not such a tenderer.
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Damages can be assessed by the court, by law or by the willful agreement of parties. This study analyzes the notion of damages, the conditions for awarding damages, as well as their assessment by the court and their legal assessment. The purpose of assessment of damages incurred by the creditor is that of reinstating the creditor to the situation in which it would have been found, if the debtor had voluntarily performed the obligations assumed by concluding the contract. Judicial assessment of damages is made by judgment and involves the judge’s examination of all the conditions for undertaking contractual liability, particularly with regard to the prejudice caused to the creditor by the debtor’s non-performance of obligations. Legal assessment of damages occurs in the cases regulated by Articles 1535 and 1536 of the new Civil Code and falls within the scope of obligations that have as object the service of granting a sum of money, to which the legislator also adds the case of obligations to do, which can be assessed in money.
